Father, 81, faces attempted murder charge in South Bend court

July 31, 2008|By PABLO ROS Tribune Staff Writer

SOUTH BEND -- When it was his turn to stand in front of the judge, Wayne Baney took short, uncertain steps in the courtroom and wore a confused, almost troubled expression on his face. "We're going to go up here," Baney's lawyer, Charles Lahey, said to the 81-year-old man with thin, white hair who stands 5-foot-6 and weighs 130 pounds. "Where?" Baney said. "Up here, to the left," Lahey indicated, pointing in the direction of Judge John M. Marnocha of St. Joseph Superior Court. That was the last time Wayne Baney was in court earlier this month. Baney has been diagnosed with Alzheimer's disease, according to Lahey and Baney's daughter, Judith Smith. "He understands me for five minutes and then he doesn't understand me," Smith said. "I have to keep telling him things. He remembers my name, but he doesn't remember my husband's name." A defendant may not be found guilty of a crime unless he is mentally fit to understand the allegations against him and what's expected of him in the trial system. That's why the disease has been an obstacle in resolving Baney's case. Court-appointed experts have evaluated Baney's ability to understand the criminal charges against him and the trial process, as well as whether Baney was mentally ill at the time of the crime he is accused of committing. Baney was charged with attempted murder in July 2007 in the shooting of his son, 48-year-old Thomas Baney, in the stomach. He could spend the rest of his life in prison if convicted. Today, Baney will appear in court again. If no plea agreement is reached, a competency hearing featuring expert testimony on Baney's mental state might be scheduled. It destroyed their family On July 16, 2007, prosecutors allege Wayne Baney shot Thomas Baney at the latter's home in the 53000 block of Olive Road with a 20-gauge shotgun loaded with a slug. The two had been arguing over an old, valuable gun with a pearl handle that Wayne Baney had lent his son several weeks earlier and now wanted back, said Baney's daughter, Judith Smith. The two had had arguments before, Smith said, but Wayne Baney had never acted violently the way he allegedly did that day. In fact, both Smith and Tom Baney have told The Tribune they believe their father's dementia was at least partly to blame for his violent outburst. After a pushing match, Wayne Baney allegedly returned to his son's home and shot him. Wayne Baney and his wife, Norma, who had been married for 59 years, have since divorced. Thomas Baney, the victim, has sued his father for damages resulting from the shooting, including medical expenses, lost wages and pain and suffering. They haven't been on speaking terms since. Wayne Baney spent more than 11 months in jail before Smith came up with the $10,000 required to bond him out. "It destroyed the family," she said. "It destroyed my sisters' lives, it destroyed my life. ... It destroyed everyone's lives." Smith, who is Wayne Baney's legal guardian, doesn't blame her father entirely for what happened. "He doesn't even remember hardly what happened," Smith said. "He knows he didn't do anything intentionally." Baney does not have a criminal history. She said her father has had dementia for about three years and that he first started taking medication for Alzheimer's while at the St. Joseph County Jail. She said the medication is helping. Smith said she doesn't want her father in prison or in a nursing home but rather at her own home in Mishawaka, where he has been living since he left the jail on June 27. Smith said she believes that with adequate treatment, he would not act violently again. She said she hopes prosecutors drop the charges against him. "My dad has had enough of this stuff," Smith said. "I hope the prosecuting attorney says enough is enough." St. Joseph County Prosecutor Michael Dvorak said he cannot discuss the case, citing rules of professional conduct that make it improper for attorneys to comment on pending litigation. Unusual in the courtroom Other attorneys interviewed say Alzheimer's has made few appearances in the criminal justice system and that the disease -- because of its degenerative nature and what little treatment is available -- could create obstacles for everyone involved.